Re C (Children) (Refusal to Make Interim Care Order) [2016] EWFC 6

10 FEB 2016

(Family Court, Holman J, 26 January 2016)

Public law children – Interim care order – Child placed in care of maternal grandmother – Whether the ICO should be renewed

The application for the renewal of an interim care order was refused.


[2016] EWFC 6
IN THE FAMILY COURT

Case No: BM16C00012
SITTING AT BIRMINGHAM

Civil Justice Centre
Priory Courts
Birmingham
B4 6DS

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: C (A CHILD)

Tuesday, 26th January 2016



Before:


THE HONOURABLE MR JUSTICE HOLMAN
(sitting throughout in public)


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Re: C (A child) (Refusal to make interim care order)


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Transcribed from the Official Tape Recording by


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Counsel for the local authority: Mrs Brown
Counsel for the mother: Mr Pearce
Counsel for the child: Mr Fiddy


Hearing date: 26th January 2016


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JUDGMENT

THE HONOURABLE MR JUSTICE HOLMAN
:

[1] This has now been a long day. It is now already 5:45pm. The mother, who is significantly addicted to drugs, needs urgently to be able to go to obtain her methadone prescription or she is at risk of suffering serious withdrawal symptoms. For those reasons, this judgment will be extremely concise. I am in any event dealing with a very interim situation.

[2] The child, whom I will call C, which is not his actual initial, was born in September 2011 so he is now about 4 years and 4 months old. Apart from a relatively short period soon after his birth, he has in fact always lived with his mother and in the home of her parents in [name of road stated]. She is a drug addict. Her brother is also a drug addict and, I have heard, seriously prone to alcohol abuse.

[3] As is very well known to the mother and her family, the local authority have been extremely concerned about the wellbeing of C for a long time. They have, however, permitted him to remain in the home of the mother with her parents under a series of so-called working agreements, which have unfortunately not been adhered to. The fact that his mother is a drug addict itself exposes C to a range of risks, but much the most significant risk in this case recently has come, not directly from the mother, but from her brother. It is quite clear that, despite the existence of a restraining order, he has on a number of occasions been round to the house, which he regards as his own home. There he has been aggressive or downright violent towards the mother, including at least one episode when he put his hands around her neck as if to strangle her while she was actually holding C.

[4] Last Thursday, social workers discovered that, in breach of the restraining order, the brother was again at the house. That resulted in the police being called. He tried to run away, but was arrested further down the road. The consequence of the breach of the restraining order, and maybe also breach of terms of his earlier release on licence, is that he has now been sentenced to six months’ imprisonment. It is thus clear that for about the next three months the brother will be in prison and does not, in fact, in the short run represent a risk to the wellbeing of C.

[5] 
Following the events of last Thursday, C was taken into police protection and made the subject of an interim care order last Friday, timed to expire at the conclusion of this hearing today. It is frankly accepted by and on behalf of the mother that at the moment she cannot be entrusted with the care of C. She has made a written statement, signed today, which makes plain that she herself desperately wishes to go into residential rehabilitation at a place called [rehabilitation centre named]. She cannot in fact enter [rehabilitation centre named] until she has first demonstrated by urine tests that she is free from drugs, apart from methadone. Frankly, it has to be clearly understood by the mother and by her mother, the grandmother, that unless the mother is able, with help, to kick this drug habit, it is highly unlikely that she will ever again be able to care for C.

[6] 
The real question is what arrangements are required to safeguard C in the short-term and during the currency of these proceedings. There is no doubt whatsoever that the criteria for making an interim care order under section 38 of the Children Act 1989 are clearly satisfied in this case. There are clearly reasonable grounds for believing that the circumstances with respect to C are as mentioned in section 31 of that Act; namely, that he is suffering, or is likely to suffer, significant harm attributable to the care given to him, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him. Therefore, unquestionably, I can in this case make an interim care order. However, I have to exercise a discretion whether or not to do so, making the welfare of C the paramount consideration.

[7] Numerous authorities, some of which have been conveniently mentioned in paragraph 4 of the excellent position statement for today by Mr Matthew Fiddy on behalf of the child’s guardian, all make clear that, particularly at the early stage of proceedings of this kind, an interim care order and removal of the child concerned from his established home and environment should be a matter of last resort. It should only be done if it is positively required in order to safeguard his wellbeing, not only in the long run, but also in the short run. As I have already said and as is accepted on the mother’s behalf, C cannot even in the short run continue to live with his mother. However, he has always lived in the home of his maternal grandparents and it is not in issue that his grandmother has had much involvement in his care and upbringing. She puts herself forward as somebody who, at any rate in the short run, can and will safely care for him and will ensure that her daughter, the mother, is completely out of the way. Formal effect can be given to that by a range of terms and conditions and undertakings which have already been discussed and which would be part of my order.

[8] The essential question today is whether or not the grandmother can be relied upon to keep her own daughter, the mother, completely away from the home, and completely out of any contact of any kind with C, apart from supervised contact arranged by the local authority. The local authority and the guardian (who has not yet had an opportunity actually to meet anyone in this case, apart from observing part of the hearing today) both say that the grandmother cannot be trusted. They rely in particular on the episode last Thursday when they say that the brother was seen upstairs in the house and the grandmother denied that he was there, although they say she must have known that he was there. There are a number of other respects in which she is said to have been devious with the local authority, or at the very least not upfront with them. Further, it is said that she was either naïve, or is now being dishonest, when she says she did not appreciate the full extent of her daughter’s drug taking.

[9] I have to form a judgment about that. I did hear from the grandmother at some length this afternoon. I myself am not persuaded that she cannot be trusted. I will require her formally to give to me from the witness box the undertakings that have been drafted and discussed. I wish to make absolutely clear to her and to the mother, and for all to hear and understand, that if there is the slightest breach, the slightest breach, of any of these terms and conditions, C is likely to be removed at once and made the subject of a further interim care order, and that will almost certainly be the last time that he lives within his family. Therefore, the grandmother needs to understand that this is now very serious indeed and she is absolutely on her mettle and on trust.

[10] There is a further point that was made by Mrs Brown on behalf of the local authority, which I fully understand and which indeed has concerned me. That is the risk of C becoming what might be called a “yoyo” child. The fact is that he was removed under a police protection order last Thursday. He has now been fostered for about five days. Under my proposed order, he will in any event remain fostered for another week in order to give to the mother a sufficient opportunity to make and implement arrangements as to where she goes. Therefore, already he has been removed from home. If he were now to return home, the point made by the local authority is that there is a high risk that he will have to be removed again. I do appreciate that; but it does not seem to me that, if it is otherwise right that in the interim he should be entrusted to his grandmother, that should be prevented simply because of the delays in this interim decision being made due to court availability.

[11] I completely understand the concerns of the local authority and of the guardian. I wish to stress that I am not in any way starry-eyed. I appreciate that there is a definite risk here that these arrangements will break down and that C will have to be removed again. But I do not feel that the requirements of the authorities that the stage has been reached when he must be removed, and kept removed, from his established home have yet been met. For those reasons, I shall make an order in the terms already discussed.

THE JUDGE: I want the mother now to go into the witness box. I wish her again either to swear an oath or affirm. That is entirely her choice.

The mother
Sworn by THE COUR
T

Q. So, you are [name], the mother of [name].

A.I am.

Q. All right. Do you undertake to me, that is, promise me, the court - this is not the local authority now, it is promising the court - first, that not later than noon next Tuesday, 2nd February, you will totally vacate the premises at [address stated].

A. Yes, I will.

Q. Secondly, that once you have vacated, you will not until further order of the court return to [address stated] or enter at all the road which is known as [road name stated].

A. I will.

Q. You promise me that?

A. I promise I will.

Q. Third, do you promise me that until further order of this court you will not in any way contact, communicate with or come into the presence of [the child, named], save for the purpose of supervised contact under arrangements made by the Birmingham City Council?

A. I promise.

Q. Now, do you understand that if you break those promises, in the first place, you will be in contempt of court and could be punished, but secondly and more importantly, you really will have absolutely lost for all time any prospect of [the child] either living within his family or living with you? Do you realise that?

A. Yes, I do.

Q. This is,—

A. Serious.

Q. —to put it bluntly, your last chance. Do you understand that?

A. Yes, I do.

Q. So, if you break this and you are caught, the consequences will be very grave. Do you understand that?

A. Yes, I do.

Q. You give me those promises?

A. I promise.

Q. All right, thank you very much. Will you come up, [the grandmother] please.

MR PEARCE: My lord, I hesitate to rise, but the prescription needs to be collected and the chemist, I am told, will be closing at 7:00 and I am mindful of the traffic.

THE JUDGE: Yes, well, we will be gone within a few minutes.

MR PEARCE: I am grateful.

The grandmother
Sworn by THE COURT

Q. Are you [name]

A. Yes.

Q. Of [address stated]?

A. Yes.

Q. Do you undertake to me, that is, promise me, the court – this is not the local authority, it is the court – first, that after noon next Tuesday, 2nd February, you will not until further order of the court in any circumstances permit [the mother, named] or [the brother, named] to enter the premises at [address stated] or its garden?

A. Yes.

Q. All right. They are just not allowed into the road at all, let alone into your house. [The mother] has got a week to make arrangements. Second, you will not until further order in any circumstances permit [the child, named] to have any contact or communication with or come into the presence of [the mother, named] or [the brother, named]. Third, you will, once he is returned to your care, care totally for [the child] and ensure that he is kept clean, well fed and appropriately clothed.

A. Yes.

Q. Fourth, you will not permit him to sleep or reside at any other address than [address stated], except with the prior written agreement of the [local authority, named].

A. Yes.

Q. If a situation arises where he wants to go and stay with a friend or something like that, I am not ruling it out, but they have got to agree in writing first, all right. Five, unless he is ill, you will punctually deliver [the child] to and collect him from the nursery – you know where the nursery is, it will be written in—

A. Yes.

Q. —at all sessions which he is due to attend, all right—

A. Yes.

Q. —day in, day out, whenever he is supposed to go. This is a very important safeguard because it means he will be seen all or most weekdays by the nursery, of course—

A. Yes.

Q. —and they will be asked by the [local authority, named] to keep a very close eye on him, of course, so he has got to go, all right.

A. Yes, yes.

Q. Six, you will permit social workers of the [local authority, named] to enter the premises at [address stated] at any time, whether announced or unannounced, and inspect any part of the premises. I anticipate they will make unannounced visits.

A. Yes.

Q. As far as I am concerned, if they have got the manpower or the womanpower, they can do it late at night, very early in the morning, weekends, whenever they like in order to check, all right, and you have got to let them in. Seven, you will not leave [the child] unattended in the house with your husband. That is not intended to be unkind to him, but because he is not entirely well. Eight, you will not permit any person to sleep at the premises at [address stated], except yourself, your husband and [the child] without the prior written agreement of the [local authority, named].

A. Yes.

Q. If you want to have a little friend of his round or something like that, or a relative of yours wants to come and stay, you can ask [the local authority] and I hope they will agree, but you are not to otherwise allow anyone to sleep there. Nine, you will not without the prior written agreement of the [local authority] permit any person to enter the premises at [address stated] who is not either a relative or an established personal friend of yourself or your husband or a person who needs to enter in the course of his profession or trade. So, you can permit your own relatives or an established personal friend of yourself and your husband or a professional person, such as a doctor, or a person who needs to enter in the course of his business or duties, such as a tradesman or meter reader or if you need to get a plumber or anything like that. Do you give me all those promises?

A. Yes.

Q. I want you to understand that I have made a judgment about you. I am reposing trust in you. I think in fact you are lucky, because I think a lot of other judges would not have done, but I have been doing this for a long time and I am broad shouldered and I am prepared to take responsibility for this decision, which they think is too risky, but I am prepared to take responsibility for it. They will be watching you like a hawk. This will be reviewed in four to six weeks anyway to see how things are going, not by me because I will not be here. If in the meantime they discover that there has been any breach of any of that, they will be round here like a shot, that is obvious, and I am afraid you will not be given another chance. So, this is the last chance for you as well as for [the mother]. Do you understand that?

A.Yes.

Q. Well, do not let me down. Thank you very much. You can go back. Who is going to type this up?

MRS BROWN: I will, my lord.

THE JUDGE: All right.

MR FIDDY: My lord, I do hesitate to detain the court for any longer than it absolutely needs to. I did just raise with my friends the form of order that [the child] should be subject to after the interim care order has expired. He ought to be subject to some order. Perhaps in the circumstances it would be a child arrangements order in favour of [the grandmother] until further order because, of course, [the mother], who is the only person with parental responsibility for [the child], will not be in the house.

THE JUDGE: I am not going to go that far, quite frankly. I am not going to say that he is to live with her.

MR FIDDY: Yes.

THE JUDGE: I am just going to say that he is not to be in the interim care of the local authority and it is all on these undertakings. As far as parental responsibility is concerned, by her undertakings [the mother] has effectively yielded parental responsibility to her mother, but no, I would not want to go so far as to make a positive order at the moment.

MR FIDDY: Very well, my lord. Thank you.

THE JUDGE: I do not think that is necessary. Anyway, he is going to be under the supervision of [the local authority, named], of course.

MR FIDDY: Yes.

THE JUDGE: You are going to type this up and set it out into some proper modern care order, very kindly. Here you are. Could you give that to Mrs Brown? Can you submit it, obviously just as soon as possible, but not now until, at best, some time tomorrow.

MRS BROWN: Yes.

THE JUDGE: I will return the documents. We will have to find out administratively tomorrow, or you will have to find out, to whom this is allocated and get dates, one for the CMC, which I was told has to be within about twelve days, and two, for a further hearing, which I intend shall happen to review all this and decide whether or not an interim care order does require to be made. That is not a fallback thing. That is a positive event. So, there will have to be scrutiny in four to six weeks’ time of how the mother is getting on and how the grandmother has performed under this, but of course it goes without saying that, if necessary, you can come back at any time for an interim care order if this breaks down.

MRS BROWN: I am grateful, my lord.

THE JUDGE: All right. Does anybody require me to sign a form?

MR FIDDY: Yes please.

MR PEARCE: Yes, my lord, but—

THE JUDGE: Hand it in quickly.

MR PEARCE: —may mother leave? She is very [inaudible]—

THE JUDGE: Yes, she can leave now.

[THE MOTHER]: Thank you.

THE JUDGE: All I am going to do now is sign the form and go. I have had somebody waiting for over an hour for me downstairs. Thank you. All right, those are the forms. Anything else that anybody wishes to raise or say? People seem to be leaving very fast. All right, well, thank you all very much indeed. I am extremely grateful to you all for your help.

MR PEARCE: Thank you, my lord.

[Court adjourns]
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